Environment Court's Annual Review 2017

Environment Court's Annual Review 2017

Thursday 27 September, 2018

The Environment Court has just released its fourth Annual Review, covering the Court’s activities in the 2017 calendar year. This article provides a snapshot of the Annual Review which can be accessed, in full, on the Environment Court’s website here.

A total of 390 new cases were lodged with the Court in 2017, including more than 70 appeals on the Proposed Auckland Unitary Plan in late 2017. A total of 238 cases were resolved in the same period. The Court reports that it continues to conclude more cases than are filed each year and there is now no backlog of cases awaiting mediation or hearing. The Court also reflects on its first year managing and deciding cases lodged with the Land Valuation Tribunals. The Court has applied its judicial case management techniques and some alternative dispute resolution to this new area of the Court’s work to eliminate previous backlogs and drive cases towards prompt resolution.

The length (and therefore cost of hearings) has reduced over time through the Court’s case management. Of the 5% of proceedings that require hearing by the Court, parties are usually required to file statements of agreed issues and statements of agreed facts. Both Judges and Commissioners almost always read evidence before the commencement of the hearing, meaning that evidence is not required to be read out in Court before questioning of witnesses begins. The Court is also increasingly directing two or more expert witnesses to give concurrent evidence during a hearing in order to gain accurate and objective answers on technical matters.

Only two proposals were directly referred to the Court in 2017 to hear and decide without first being decided by a council at first instance. Direct referral cases are assigned priority by the Court because they usually relate to large commercial or infrastructure activities where timeliness and certainty of a final decision are important. The Court notes that a 2013 amendment to the RMA which proposed to limit councils’ ability to decline an applicant’s request to directly refer to the Court still is not in force due to the absence of pre-requisite regulations. The Court considers that the need for regulations should be removed to improve access to the direct referral process:

“Consent authorities presently have discretion to refer a case directly to the Environment Court. In 2013 an amendment was made for the purpose of limiting councils’ discretion to refer cases, but the provision was not to take effect until after Regulations had been promulgated. The Ministry for the Environment has subsequently sought and received submissions on the topic, but the relevant provision (s87E RMA) is awkwardly constructed and Regulations have not yet been promulgated. Members of the Court consider that the Court and parties would not be overwhelmed if the need for Regulations were removed in any amending legislation.”

[page 7]

One of the most significant amendments made to the RMA in 2017 was the replacement of the ‘voluntary’ approach to alternative dispute resolution in s268 with mandatory participation in s268A, unless a Judge grants leave to excuse a party. By 2017 the Court had a long-standing practice of strongly encouraging parties to mediate with or without the assistance of Commissioners, but the Court now has the power to require parties to mediate. The Court notes, on a related matter, that a suggestion made in the 2013 Final Report of the Productivity Commission that the Court’s mediation expertise be available to support local authority plan making processes before the appeal process has started would present significant challenges to the small pool of Environment Commissioners currently available. As an alternative, the Court proposes to work with the RMLA and NZPI to run a series of workshops in early 2019 on plan drafting. We will keep you posted on the scheduling of those workshops.

Another Court initiative we are likely to see in 2019 is a survey of regular Court users to allow the Court to obtain a better idea of “attitudes to current Court practices including timeliness, and suggestions for improvement in processes.” Again, we will keep you posted on any survey initiative that comes our way. In the meantime, the Court has expressed its appreciation for the input it continues to seek and receive on its practices:

“Meantime the Principal Environment Judge maintains regular formal and informal contact with relevant professional groups seeking ideas on practices that can enhance efficiency and access to justice. The support of senior practitioners of the many professions engaged in work before the Court is much appreciated. We claim no monopoly on ideas about efficiency, fairness and access to justice.”